Brewer v. State, 968S146

Citation252 N.E.2d 429,19 Ind.Dec. 264,253 Ind. 154
Decision Date14 November 1969
Docket NumberNo. 968S146,968S146
PartiesRobert M. BREWER, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Taylor & Taylor, George E. Taylor, Sullivan, for appellant.

Theodore L. Sendak, Atty. Gen., Richard V. Bennett, Duputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant, Robert M. Brewer, was tried by jury in the Sullivan County Circuit Court and was found guilty in May, 1968, of first degree murder in the shotgun death of one Robert J. Snyder of Carlisle, Indiana. A motion for a new trial was filed alleging certain errors and said motion was denied by the trial court. Appellant brings this appeal assigning as error the overruling of his motion for a new trial. He bases his appeal on three grounds: (1) the exclusion of women from the petit jury, (2) confusion resulting from the state's instructions and (3) insufficiency of the evidence.

The first ground for error asserted by the appellant is 'that women as a class were excluded from the petit jury panel, including the regular panel and alternates thereto, and the twenty-five (25) special jurors selected as potential jurors in this cause.' As set forth in the appellant's motion for a new trial, there was only one woman juror available in the first twenty-five (25) special jurors and no other women on the special panel for this cause. The one woman among the first twenty-five (25) special jurors, juror no. 8, was excused by the court with the concurrence of the appellant when it was shown that she was ineligible to serve on the jury because she was not a resident of Sullivan County. Furthermore, examination of the prospective panel of jurors indicated that out of a total of seventy-five (75) jurors, there were only three (3) women. They were special jurors nos. 30, 46 and 66. Since juror no. 8 was excused from the regular panel and the next female juror on the list of prospective jurors was juror no. 30, appellant complains that, even using his twenty (20) preemptive challenges, he could not have had any women on the jury in this trial.

The thrust of appellant's argument is that the exclusion of women from the jury panel was harmful to appellant's defense and was prejudicial. He contends that the seating of an all male jury caused by a de facto exclusion of women was such error as to be sufficient grounds for the granting of a new trial by the lower court.

The statute providing for selection of grand and petit juries in Indiana is Ind.Ann.Stat. § 4--7104 (1968 Repl.) set forth in part as follows:

'Selection of grand and petit jurors--Said commissioners shall immediately, from the names of legal voters and citizens of the United States on the latest tax duplicate and the tax schedules of the county, examine for the purpose of determining the sex, age and identity of prospective jurors, and proceed to select and deposit, in a box furnished by the clerk for that purpose, the names, written on separate slips of paper of uniform shape, size and color, of twice as many persons as will be required by law for grand and petit jurors in the courts of the county, for all the terms of such courts, to commence with the calendar year next ensuing. Each selection shall be made as nearly as possible in proportion to the population of each county commissioner's district. In making such selections, they shall in all things observe their oath, and they shall not select the name of any person who is not a voter of the county, or who is not either a freeholder or householder, or who is to them known to be interested in or has cause pending which may be tried by a jury to be drawn from the names so selected.

They shall deliver the box, locked, to the clerk of the circuit court, after having deposited therein the names as herein directed. The key shall be retained by one (1) of the commissioners, not an adherent of the same political party as is the clerk.'

It cannot be disputed that the cherished right to trial by jury is basic to our system of jurisprudence. To be a meaningful right, it is imperative that juries be truly representative of the community and that the jurors be capable and impartial. Any deliberate exclusion from the jury of otherwise qualified groups is unfair and a violation of the due process clause of the United States Constitution. Smith v. State of Texas (1940), 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84. Appellant does not challenge Indiana's jury statute § 4--7104, supra, as constitutionally objectionable. He makes no claim that the statute excludes women or any other qualified class of citizens from juries. Instead, appellant argues that women as a class were excluded from the petit jury because the jury commissioners in the exercise of their judgment and discretion, produced an under-representation of women on the venire of seventy-five (75) prospective jurors. We cannot agree with appellant that this is reversible error.

To say in any one trial that a venire of prospective jurors does not constitute a sufficient representation of women according to a cross-section of taxpayers in a particular county, is without meaning. In the first place, that which must be a representative cross-section is not one particular venire, but rather it is the original yearly selection of names of prospective jurors for all the terms of court during the calendar year next ensuing. Woods v. State (1968), Ind., 235 N.E.2d 479. Appellant did not call any jury commissioner to testify nor did he produce any other evidence to prove that the names in the box of prospective jurors were not a reasonable representation of the community. It is clear that appellant has no absolute right to women on the jury. In fact, though Indiana has not chosen to do so, a state may constitutionally confine jury duty to males. Strauder v. West Virginia (1880), 100 U.S. 303, 25 L.Ed. 664. Fay v. New York (1947), 332 U.S. 261, 67 S.Ct. 1613, 19 L.Ed. 2043. Hoyt v. Florida (1961), 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118.

This court has said that where selection of the jury list was made in a good faith exercise of discretion vested in the jury commissioners, a violation of statutory duty would not be assumed because of the result that no women were drawn. Jacobs v. State (1936), 210 Ind. 107, 1 N.E.2d 452. There must be a showing that the jury commissioners were arbitrary or deliberate in their exclusion of the women from the jury list. In the absence of bad faith or probable harm, we must not quash an indictment nor reverse a trial. Bulter v. State (1967), Ind., 229 N.E.2d 471. It will not be presumed that appellant's rights were prejudiced by the action of the jury commissioners in not including names of women. In Hoyt v. Florida, supra, the United States Supreme Court states that the burden of proof is on the complaining party to show that the exclusion was done pursuant to an arbitrary scheme and how he was prejudiced thereby.

In the instant case, appellant concedes that the jury commissioners had no evil intent in drawing the panel of prospective jurors practically eliminating women. Nor does he assert that there was any purposeful or intentional exclusionary plan evidenced by their conduct. The only substantive objection raised by appellant is that he was prejudiced by an all male jury.

Citing various legal scholars who have done research in the field, appellant refers to the following authorities: Successful Techniques in the Trial of Criminal Cases, Rothblatt, Henry B., 1961, p. 23. How to Prepare and Try a Negligence Case, Low, Elmer, 1957, p. 115. The Jury and the Defense of Insanity, Simon, Rita James, 1967 p. 109. Appellant argues that women are desirable as jurors if the principal or prosecuting witness is a woman, and they are also desirable in cases involving children. Both of these factors were present in this case to-wit: a young boy as defendant and a woman (Mrs. Robert J. Snyder) as the principal prosecuting witness.

Robert M. Brewer was fourteen years old at the time of the alleged killing. He had been living in the home of the victim Robert J. Snyder for over three months prior to the homicide. He was placed there by the Sullivan County Welfare Department after he had run away from the home of his father, Ralph E. Brewer, also of Carlisle. Appellant introduced much evidence at the trial indicating that his home life was an unhappy one. He had lived with one relative after another since 1954, when his parents were separated. He never knew his mother until she visited him in jail in 1968, and he did not get along with his father. Evidence introduced at the trial indicated that appellant was satisfied living with the victim and his wife and was deeply disappointed when told prior to the shooting that they could not keep him in their home any longer. These are circumstances which might cause a jury composed of men and women to react differently than one comprised of men only. However this court seeks neither to prove nor disprove appellant's hypothesis. Rather, we repeat the rule enunciated by the U.S. Supreme Court as pertinent here:

'That right (to an impartially selected jury assured by the Fourteenth Amendment) does not entitle one accused of crime to a jury tailored to the circumstances of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions.' Hoyt v. Florida, supra.

The appellant's allegation of prejudice must fail. He makes no showing of harm beyond the proposition that women on the jury would have been better suited to his defense.

We think the rule in this case should be stated as follows: unless there is a showing of bad faith, substantive prejudice to the rights of the accused, some arbitrary system of exclusion, or other evidence of intentional misconduct,...

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